Search & Seizure – Protective sweep doctrine justified warrantless search

Where officers had reasonable suspicion a man might be armed and dangerous if allowed to get back into his vehicle, their search of his backpack was not unlawful.

Background

The Commonwealth appeals the trial court’s decision to suppress (1) Phillip Graham’s statement about marijuana and (2) evidence obtained from a search of Graham’s backpack.

Statements

The police must warn a suspect in their custody that he possesses certain rights, such as the right to remain silent or to have an attorney present during questioning. Here, Graham was handcuffed and locked in a police car. Additionally, Officers Jacob and Heffington both told Graham that he was not free to leave, and when Graham asked if he was going to jail, Jacob responded, “At this point, maybe.”

This court concludes that Graham, although not officially under arrest, was restrained to “a degree associated with a formal arrest” and was therefore in custody for *Miranda *purposes when Heffington asked him about the contents of the backpack. Accordingly, *Miranda *warnings were required, and the trial court properly suppressed Graham’s statement about the marijuana.

Search

“[W]arrantless searches are *per se *unreasonable, subject to a few specifically established and well-delineated exceptions.” The Commonwealth argues that the protective sweep doctrine justified the search here. This court agrees. “[A] protective search is authorized even if the suspect is under police restraint at the time the search is conducted, because the suspect may be able to escape such restraint, or may later regain access to the vehicle if he is not arrested.”

The trial court failed to give due consideration to that caselaw when it concluded that the protective sweep doctrine did not justify the search because Graham “was handcuffed in the back of the officer’s patrol car.” By relying primarily on Graham’s inability to access the weapon at the time of the search, the trial court committed legal error. The proper question is whether the officers had reasonable suspicion that Graham might be armed and dangerous *if allowed to get back into his vehicle*. This court answers that question in the affirmative.

First, the officers reasonably believed that Graham had a weapon and could have gained access to it if they released him back to his vehicle because Graham admitted that he had a gun and told the officers they could find it in a backpack that was in reach of the driver’s seat. Second, even if the presence of a firearm is insufficient in itself to provide reasonable suspicion of dangerousness, the officers articulated other reasons for suspecting Graham of being dangerous.

For example, Jacob emphasized that the stop occurred at the intersection of three of the most dangerous neighborhoods in the city. Graham was also visibly agitated with the officers and responded “Duh!” when Heffington accused him of having “an anger problem,” which Graham tied to his bipolar disorder. Most importantly, he refused to comply with commands connected with officer safety, such as the command to roll down his tinted windows so that Jacob could see Graham during the stop.

Courts in Virginia have cited similar circumstances in upholding protective sweeps in the past. As in those cases, it would be “clearly unreasonable to deny the officer[s] the power to take necessary measures to determine whether” Graham possessed a weapon “and to neutralize the threat of physical harm.”

Graham nevertheless argues that “the continued search of a separate black bag within the backpack” exceeded the scope of that justification. This court disagrees. Under the “plain feel” doctrine, “when the character of the object felt by the officer is immediately apparent either as a weapon or some form of contraband, the object is for all practical purposes within the plain view of the officer.” Here, the contraband character of the marijuana was immediately apparent to the officers, allowing them to seize it.

Affirmed in part, reversed in part and remanded.

Concurring/dissenting opinion

Chaney, J., concurring in part and dissenting in part.

I agree with the majority that the circuit court correctly suppressed Graham’s un-*Mirandized *statement about marijuana. I depart, however, from the majority’s conclusion that the circuit court erred in suppressing the evidence recovered from the search of his backpack. The circuit court correctly found that the protective-sweep doctrine did not justify the search of the backpack and that, independently, the scope of the search exceeded any safety justification, even if the initial retrieval of the firearm had been lawful.

Graham v. Commonwealth, Record No. 2145-25-1, April 28, 2026. CAV (unpublished opinion) (O’Brien) (Chaney, concurring in part and dissenting in part). From the Circuit Court of the City of Norfolk (Paige). John A. Fisher, Assistant Attorney General (Jay Jones, Attorney General, on briefs), for appellant. Taite A. Westendorf (Westendorf & Khalaf, PLLC, on brief), for appellee. VLW 026-7-172. 24 pp.

Full-Text Opinion

VLW 026-7-172
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